How to File a Motion to Withdraw a Case From Court

By Dennis Masino - Updated June 16, 2017
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Civil lawsuits are common. People sue because of broken contracts, broken cars or broken hearts. A lawsuit is started by filing a summons and complaint with a court and serving — delivering — a copy to the person being sued. Stopping a lawsuit is not as simple as withdrawing the papers from court. Sometimes, a motion — a written request asking the judge to do something — is required.

Find out from the court clerk if the person being sued has answered the complaint. Most state rules allow a person who has started a lawsuit to withdraw the case voluntarily without the approval of the judge or without the approval of the person being sued before an answer is filed. The person being sued — the defendant — must file an answer with the court within a certain period of time. The filing of the answer means that the defendant has officially become part of the case. Withdrawing a case after the defendant has answered requires the written consent of the defendant. If the defendant does not consent, then a motion must be made to the court asking for permission to withdraw the case.

Get a copy of the court rules for motions from the clerk. Each court has rules pertaining to motions. Court rules dictate the papers to be filed with the court, the day of the week motions are heard by the judge, the amount of time that must be given to the opposing party to answer and the circumstances under which the court will allow a person to withdraw a case.

Prepare the written notice of motion. A motion is a written request to the judge for an order granting certain relief. The papers to be submitted include the notice of motion and the supporting affidavit. The notice of motion informs the opposing party of the date the motion will be submitted to the judge, the relief requested, the name and address of the court, and the date by which papers in response to the motion must be filed with the court. The supporting affidavit is the notarized statement reciting the facts establishing the party's right to have the action withdrawn. The affidavit in support should follow the court's guidelines for a motion to withdraw a case.

Serve a copy of the motion on the opposing party. A copy of the notice of motion and the supporting affidavit must be served on the opposing party. Court rules will establish the method of service, which is usually by mailing a copy to the opposing party. An affidavit of service must be attached to the original motion papers. The affidavit of service is signed by the person who mailed the papers to the opposing party showing the date of mailing and the address to which they were mailed.

File the original motion and the affidavit of service with the court clerk. The papers must be filed in advance of the date on which the motion is to be submitted to the judge. Most judges issue written decisions, rather than verbal decisions, in open court. Provide a stamped, self-addressed envelope with the motion papers for the clerk to use to mail the judge's decision to you.

About the Author

Dennis Masino practiced and taught law for many years before he began writing professionally in 2009. His articles on law, real estate and business topics can be seen on many websites. He is the author of two published books on drunk driving laws and holds degrees in law and finance.

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